Kudos to Michelle Goldberg on her joining the New York Times op-ed group

Sandy Levinson

It is overdetermined that I am elated that Michelle Goldberg is now a regular op-ed writer for the New York Times. Her first column this morning, which for some reason I seem unable to link to, was on the degree to which we are subject to minority rule in the US, and she was kind enough to quote me. I confess I am very pleased about that. But I'm even more pleased by the fact that she is now the first pundit who is willing to "connect the dots" between the defects of our political system and the Constitution. As many of you know, I have been very frustrated with Tom Friedman and Paul Krugman over many years because they repeatedly write very eloquently about the dysfunctionality of our present polity, but never once engage in "dot connecting." Krugman especially is content to engage in vigorous denunciation, much of it certainly deserved, of Republican leaders, without ever asking why we accept with such equanimity at constitutional system that, during the Obama presidency even in 2009-2011, allowed the minority party in the Senate such power to obstruct the Obama program. I'm on record as saying that Mitch McConnell was behaving quite rationally as an opposition leader, but that the Constitution should be blamed for giving him so much power. Thank goodness, in at least one sense, that the Republicans won the Senate, for now it is crystal clear that the inability to repeal Obamacare is not because of obstructionist Democrats but, instead, because of the growing rifts within the Grand Old Party itself. We would be getting an entirely different narrative if 51 Democrats had ostensibly prevented repeal.

Everyone knows that the hardest achievement is to get from 0 to 1 with regard to a public issue. For years now, the number of mainstream pundits willing to engage in serious discussion about constitutional defects has been zero. Now we have one, and my fervent hope is that Ms. Goldberg will spark the long overdue discussion that we are so desperately in need of. My conservative friend Seth Lipsky just posted a welcoming editorial about Goldberg in the New York Sun website (again, for some reason I can't link to it), in which he takes issue. So perhaps the number in one day has gone from zero to two.

As usual, I'm willing to allow comments, but I fervently hope that everyone will first log on to the NYTimes site and read Ms. Goldberg's column before commenting. Let me say, incidentally, that I was heartened by the comments to Gerard's very important posting on statehood for Puerto Rico. Almost uniquely, I felt that everyone was genuinely in conversation with one another and not simply attempting to score cheap (and completely predictable) political points. Puerto Rico presents really difficult issues, which are almost certainly going to get every more complicated. Will the response of Puerto Ricans to mainland indifference be to encourage a switch of "commonwealth's" to supporters of statehood, in order to get some genuine political clout that they now lack, or, instead, will it promote support for secession from the American Empire a la 1776, and would we allow it? Would Republicans in fact support statehood, whatever their platform says, given the high likelihood that it would result in two Democratic senators and five Democratic representatives?

Ms. Goldberg, incidentally, is also courageous enough to treat the issue of secession with some seriousness, interviewing Gov. Jerry Brown about potential developments in California. It will be really interesting to see where she chooses to focus on in the future, but her debut, from my perspective, was auspicious in every conceivable way!

I'd actually read her column yesterday; Somebody else linked to it, I don't recall who at the moment.

She's complaining of a tyranny of the minority. Shouldn't she be producing more examples of, well, tyranny? Her essay is heavy on the minority, very, very light on the tyranny. A new hotel is suddenly more profitable than it was before it opened.. The President publicly agrees with the majority about kneeling during the national anthem. A vicious dictator is taunted. Imagine that! He actually said bad things about a murderous dictator!

That's straight up tyranny, alright. Nobody but a tyrant would diss a tyrant.

In fact, as a member of that minority, I might even suspect the real tyranny that offends her is the loss of the opportunity to impose a tyranny of the majority. Under Trump, cake decorators might eventually get to decide who they'll bake cakes for, the horror! The Supreme court isn't likely to permit the 2nd amendment to be erased. College students might get due process if accused of rape.

Look, the problem the Democrats have is pretty straightforward: They are becoming more and more popular in an ever smaller fraction of the country. Sure, they won the popular vote for President last year. All of that win, and then some, came from utterly dominating the vote in California.

The Constitution was designed to keep the government from being controlled by geographically concentrated majorities. It's working as intended. If the Democratic party doesn't like this?

Maybe you should get around a bit, try appealing to people who don't live in tiny, overpopulated urban enclaves. It's a big country out there, stop trying to rule it like occupied territory, and get to know the people in it.

"The Constitution was designed to keep the government from being controlled by geographically concentrated majorities. It's working as intended. If the Democratic party doesn't like this?"

Brett of course ignores that the 1787 Constitution's accommodation of slavery that worked as intended until the Confederate States seceded and started the Civil War, which the Confederacy lost. Perhaps in Brett's Trumpian MAGA view, that's when America was great.

Brett cherrypicks polls as well, ignoring the polls that show low approvals for Trump's performance still in the first year of his term. I wonder how Brett's white supremacy fits within his mixed race family.

You're an idiot, but I'm willing to accept that it might just be dementia, and so not hold it against you.

The Constitution's accommodation of slavery was predicated on the idea that it was an institution on its way out, and that they could kick the can down the road until it died a natural death. They didn't anticipate the cotton gin making slave raised cotton so wildly profitable. So, no, things really did not work out the way they'd anticipated.

"The Constitution was designed to keep the government from being controlled by geographically concentrated majorities. It's working as intended."

I like that conservatives are just owning their commitment to opposing majority rules and consent of the governed (with the window dressing of 'democracy of land over people'). As even Bart acknowledges, the concentration of people in urban and coastal places is one of their *choice.* People are getting up and moving from rural places to urban places because they prefer the lifestyle there. And the Republican position is: this majority should be ruled by a minority because they chose to live next to each other.

"The Constitution's accommodation of slavery was predicated on the idea that it was an institution on its way out"

That's silly. The slave states certainly didn't think they were on 'the way out,' they were determined to institutionalize, protect and *expand* their way of life. And the did so for a long time, in large part because of the concessions they won in the Constitution!

Again, all anyone needs to know about so called 'libertarians' is their fawning worship of the period of our history in which *actual human slavery* was institutionalized alongside their vociferous hatred for the parts of our history when *it wasn't.*

I'll also note that this morning I see the news that the same conservatives that loudly complained about the 'lawless' Obama administration just nominated a Senate candidate who was actually twice found in contempt of our Constitution and our legal system.

Our Constitution has always had a small-state bias, but the effects have become more pronounced as the population discrepancy between the smallest states and the largest states has grown. “Given contemporary demography, a little bit less than 50 percent of the country lives in 40 of the 50 states,” Sanford Levinson, a constitutional law scholar at the University of Texas, told me. “Roughly half the country gets 80 percent of the votes in the Senate, and the other half of the country gets 20 percent.”

***

Back in 1787 there were 13 states. The power of the slave states under the Constitution back then supported slavery until the Civil War. Sandy's quote suggests the surge in White Supremacy and White Nationalism in America under Trump with its "Tyranny of the Minority."

Query: Does Brett actually live in a large underpopulated rural area? If so, is Brett representative of the people there? Maybe Brett should take his own closing advice to Sandy and get to know people in those " ... tiny, overpopulated urban enclaves."

The thing about majority rule, is that it's still rule. I mean, granted, it can be better than minority rule, on the utilitarian basis that it's better that the majority oppress the minority, than that the minority oppress the majority.

But it's better still if nobody gets oppressed, and majority rule precludes that. So, yeah, I don't have any problem opposing majority rule, provided that the alternative is liberty, rather than a larger number of people being oppressed.

Majority rule and the consent of the governed are somewhat incompatible concepts. Because the majority doesn't necessarily back off if the minority doesn't consent. Often it just runs roughshod over the minority.

That's why I think it's pretty significant that Goldberg's examples of "tyranny" were so pathetic. Because the thing that's objectionable about the tyranny of the minority is the tyranny part. And if that's all Goldberg has to show for tyranny, why should I object to it?

"The Constitution's accommodation of slavery was predicated on the idea that it was an institution on its way out, and that they could kick the can down the road until it died a natural death. They didn't anticipate the cotton gin making slave raised cotton so wildly profitable. So, no, things really did not work out the way they'd anticipated."

last post should be read carefully. As to predication claimed, perhaps Brett bases this on on the 1808 slave trade provision in the 1787 Constitution. But that provided protection for the "breeding" of chattel slaves and creating value over the cheaper slaves brought here in such trade. I wonder how the Framers thought of the manner in which slavery would die "a natural death." Brett attempts to read the minds of the slaveowners and Framers about " ... things really did not work out the way they'd anticipated."

Back when Brett thought America was great, slaveowners were actually a minority of whites in the slave states but had political power with its "Tyranny of the Minority," a really small minority, similar to the political power of the Robber Barons during The Gilded Age. The only thing back then the majority of whites had in the slave states is that they weren't slaves, somewhat like today's Revengelicals (fka White Evangelicals) base of Trump.

The funny thing about many of today's conservatives is how much they are, unwittingly, like yesterday's liberals. Remember Lani Guiner? Her sin was suggesting that racial minorities should have veto power over the will of racial majorities. Today's conservatives think that, but about *geographical* minorities and majorities. Heck, I think both are weird, but at Guiner has more of an argument there I'd say.

Sandy, I think my comment is relevant but somewhat apart from your main theme. I am interested neither in praising Goldberg nor burying her. But someone who is concerned about the state of the nation and concerned about the institutions that might help address that condition might stop to consider what the Times is up to in a broader institutional sense. The number of actual shoe-leather reporters at the Times appears to have grown smaller over time, and the pace of reductions in both reporters and bureaus has increased hugely in the past ten or twenty years. There have been multiple phases of buyout offers. The Times recently cut large numbers of its editing staff, aiming to go from 109 to around 50 on the editing desk, and got rid of its Public Editor position, which helped keep the paper honest, while it was at it. Meanwhile, print and online columnists and commentators have grown like kudzu at the paper. Goldberg is only one of many new additions to the Times commentariat. Of course all this is intentional and part of a move to maintain online attention, readership, and social media sharing of pieces at the lowest possible cost. A recent Times memo described straight news stories as poorly read and "dutiful" in nature. Whatever their salaries, the work of columnists is cheaper to produce than actual reportorial work: All it takes to write a column is an opinion and a perusal of the day's Twitter feed. One may like or deplore the writing of Goldberg, Roxane Gay, Bret Stephens, and other newbies. But instead of celebrating Goldberg's hiring, you might widen your lens a little and worry about whether a newspaper that emphasizes columnists with strong opinions and a likelihood of garnering page hits, while cutting back on news bureaus, reporters and straight reporting, and serious editing can really do the work of monitoring and reporting on all the things that concern you. You might think Goldberg is a jewel, but I would suggest that in the larger scheme of things the Times is investing in baubles instead of the serious work that citizens and others desperately need right now.

Shag, the left chafes under the protections of the Constitution, and is trying to justify dispensing with it. Claiming every bit of the Constitution is a defense of slavery is just a tactic in the cause of delegitimizing it so that they can get away with ditching it some time down the road.

You're being absurd, claiming a clause allowing Congress to ban the importation of slaves was meant to protect slavery. Even by your standards you're indulging in absurdity.

Paul, I endorse your point. Indeed, they are elevating opinion over reporting, and it's troubling.

You're being absurd, claiming a clause allowing Congress to ban the importation of slaves was meant to protect slavery.

Some of those at the Convention itself said pretty much the same thing:

"General Pinkney declared it to be his firm opinion that if himself & all his colleagues were to sign the Constitution & use their personal influence, it would be of no avail towards obtaining the assent of their Constituents. S. Carolina & Georgia cannot do without slaves. As to Virginia she will gain by stopping the importations. Her slaves will rise in value, & she has more than she wants. It would be unequal to require S. C. & Georgia to confederate on such unequal terms. He said the Royal assent before the Revolution had never been refused to S. Carolina as to Virginia. He contended that the importation of slaves would be for the interest of the whole Union. The more slaves, the more produce to employ the carrying trade; The more consumption also, and the more of this, the more of revenue for the common treasury."

Madison: "Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves."

In 2016, republican candidates running under various tickets (Trump [R], Johnson [L], McMullin [I]) won a majority of the presidential vote.

Since the 1994 realignment, a plurality to majority voters (depending on the number of Indi and third party winners) have elected the House majority in every cycle but one - the ahistoric 2012 election where urban voters showed up in force while millions of white working class suburban and rural voters stayed home.

Goldberg's partisan and ideological whine about the Senate is ironic since this is the most Democrat and progressive elected body in the federal government.

We really need a runoff system for federal elections to dispense with these attacks on small "d" democratic legitimacy of our government.

Is Paul's complaint concerning the NYTimes a complaint about the "press" clause in the 1st A which permits the NYTimes [and other media] to do the things Paul doesn't like? Maybe a Second Constitutional Convention might address Paul's personal 1st A "speech" clause supported concerns. Sandy might agree, as such a Convention might address his own concerns.

When I saw Sandy Levinson's name in that column, which I referenced in a previous thread, it seemed fairly sensible for him to post about it here. I found an unsigned reply from NY Sun but reference to "our friend Sandy Levinson":

http://www.nysun.com/editorials/the-new-anti-federalists/90078/

I enjoy her work and two of her books. The third about a yoga enthusiast appears to be an interesting story, but with respect, couldn't really get into the book itself. Suffice to say, including after yesterday's primary, her first two are still relevant today: Kingdom Coming: The Rise of Christian Nationalism, The Means of Reproduction: Sex, Power, and the Future of the World.

Anyway, the NY Sun op-ed labels the national popular vote interstate compact idea "evading the Constitution," which is somewhat confusing. It might be a bad idea, but how does it do that? Following a link, the problem seems to be that such a compact would require congressional consent. I guess if enough states support the idea that they might have the wherewithal to get that anyway. Or, states can allot their electoral votes individually based on the national popular vote.

I'm inclined to be somewhat restrained about purpose and expectations, since often tends to be mixed, but there to me seems to have been a somewhat mixed sentiment there on slavery. There was a segment at the Convention that were there particularly to protect slave interests. Others such as Madison were from slave states and were concerned about protecting them overall, but was not as big on slavery itself. Various people, including some slave-owners, had some hope slavery would die out eventually. The invention of the cotton gin helped stop that. The Constitution itself protected slavery but left an opening for it to die out too.

As to the "tyranny of the minority," at times, those who support minority checks appeal to "democracy" when such minority checks allegedly do it wrong. There are minority checks. The question is extent and application. Thus, the op-ed references gerrymandering. And, what was in place in 1787 over time was seen as not ideal later on (not just regarding slavery). The minority checks over time led to issues -- e.g., filibustering to stop civil rights legislation, so the current reality is not total novel. Still, two presidential elections where the popular vote winner lost out in 16 years and so forth puts things in harsh light.

Finally, the health care repeal attempts does as well. PPACA passed via sixty votes in the Senate, a majority in the House and presidential signature, over a span of over a year with many hearings etc. One can debate if there were too many minority bottlenecks (including filibustering to stop a clean-up of the first draft of the bill), but some of them probably helped the process. The screwed up process of the repeal attempts is about as blatantly bad as the content. One reason for the rush was that the repeal's content was simply not popular. Minority control might look worse here.

The op-ed ends with a statement on the result of the system in place at this moment. As Mr. W. notes, people decide to live certain places. If the system is particularly skewered with bad results, minority checks can result into minority tyranny.

No, it's not a complaint about the Press Clause. It's merely a suggestion that whatever the merits of new individual commentators and columnists, we ought to be concerned about news organs that have the capacity to do serious reporting instead shifting their energies toward commentary and away from reporting (and serious editing). From a civic standpoint, that to me is closer to circuses than bread. I have no desire to turn my lament into a legal matter.

Population would control the House, geography would control the Senate and nothing would get done without the agreement of both.

This is sort of correct. State legislatures would control the Senate, until 1913. Would that population controlled the House! Were that the case, there would be a much more even split between Democrats and Republicans. But widespread gerrymandering, and suppression of Democratic-leaning groups, have tilted this balance. For instance, in Wisconsin:

"Thousands of Wisconsin residents in two counties did not cast ballots in last November’s presidential election due to confusion over the state's voter ID law, according to new research.

"The study, which was conducted by a political science professor at the University of Wisconsin-Madison, determined that 11.2 percent of 'eligible nonvoting residents' were discouraged by the state’s voter ID requirement. This percentage amounts to 16,801 individuals in Wisconsin’s Milwaukee and Dane counties, although as many as 23,252 individuals may have been dissuaded, given the survey's margin of error."

See http://thehill.com/homenews/campaign/352511-thousands-in-wisconsin-didnt-vote-in-2016-over-state-voter-id-law-confusion for this story. It is representative of the experience of poor, minority and student voters in states where these cynical voter ID and other vote-suppressing laws have come into effect since the Roberts court gutted the Voting Rights Act.

"Cynical" would be the view of those Republican operatives and officials who have been frank enough to explain these laws' true purpose: “Look, if African Americans voted overwhelmingly Republican, they would have kept early voting right where it was,” [longtime Republican consultant, a fixture in North Carolina politics] Wrenn said. “It wasn’t about discriminating against African Americans. They just ended up in the middle of it because they vote Democrat.”

"But widespread gerrymandering, and suppression of Democratic-leaning groups, have tilted this balance."

You know, I'd partially agree with that: There is gerrymandering going on. The thing is, both parties are guilty, and it mostly cancels out.

What you're calling "suppression" is at most a mild inconvenience relative to your preferred "as easy to vote as is humanly possible" situation. Setting a different balance between ballot security and convenience than you prefer doesn't amount to a constitutional violation, though. We're not talking about siccing dogs on people who try to vote. Just people who don't bother to vote if they have to prove they're who they say they are.

To add to Mark Fields' comments on Brett's claims of my absurdity on the Constitution's "slave trade" clause, that clause did not act automatically to eliminate the slave trade as the clause required Congress to take action. And Congress did so in timely fashion at the behest of President Thomas Jefferson, a slave owner, from ... [drum roll] ... the Commonwealth of Virginia. While the slave trade was halted de sure, it continued de facto as S. Car. preferred the cheaper slave trade slaves over the more expensive domestically-bred chattel variety that VA no longer had need for. Speaking of absurdity, what are Brett's standards on White Supremacy and White Nationalism? Are they based upon the 1787 Constitution's protections of slavery?

Larry: Thousands of Wisconsin residents in two counties did not cast ballots in last November’s presidential election due to confusion over the state's voter ID law, according to new research.

This was not "research," it was a poll which gave non-voters an excuse for failing to vote, without explaining how on Earth a photo ID confused them. The money question found: "Most of the people who said they did not vote because they lacked ID actually possessed a qualifying form of ID." The poll should have followed up with more questions asking whether the ID holder had every used their ID to buy alcohol, cigarettes or to board a plane. Thus, these folks are either lying about their confusion (ding, ding ding) or are too stupid to make basic life choices like voting.

"The survey found considerable confusion about the law. Most of the people who said they did not vote because they lacked ID actually possessed a qualifying form of ID. This confusion may be the result of a lack of effective efforts educating eligible voters of the requirements of the law, and it is consistent with other studies that show many otherwise eligible voters are confused about ID laws." Good lawyering Mr DeP! A little selective quotation turns understandable confusion, helped along by the state's disinterest in clarifying matters, into the province of liars and fools.

The effects of partisan gerrymandering has been covered by various studies with some disagreement. Brett citing a specific study is of limited value in this respect. This includes his past comments as to the effects of bunching in urban areas. A recent study found that does not allow us to hand-wave claims of unfair partisan advantage.

As to both parties, if there is an effect, control of state legislatures will be particularly important there. Sometimes, parties work together there to protect themselves, but often -- from when the very term was invented -- those in control will use it for their own benefit. At moment, Republicans have a significant leg up regarding control of state legislatures. Some have pointed out this results in significant effects in certain states.

Studies have shown that "at most a mild inconvenience" is also mistaken, but since this has repeatedly been addressed, yet again pointing it out is unlikely to be convincing to some. Rick Hasen at Election Law Blog replying to a recent study that showed serious inconvenience effects is probably particularly helpful. The burden to voting is apparent. But, bottom line, the point is that voting is a fundamental right. Unwarranted burdens, and the burdens repeatedly are, are by definition unreasonable there.

When gun rights are involved, merely "siccing dogs on people" isn't the test that is set forth by some individuals. The burdens have repeatedly been shown not to be useful enough for "ballot security" etc. to warrant the costs.

WEAU News: "Gov. Scott Walker's administration is working on finalizing a plan to close as many as 10 offices where people can obtain driver's licenses in order to expand hours elsewhere and come into compliance with new requirements that voters show photo IDs at the polls.

"One Democratic lawmaker said Friday it appeared the decisions were based on politics, with the department targeting offices for closure in Democratic areas and expanding hours for those in Republican districts." -- http://www.weau.com/home/headlines/DMV_says_closure_decisions_arent_final_126026219.html

[As with burdens on the right to vote, it is good policy overall to use methods to district that avoids partisan gerrymanders. Partisan gerrymanders very well can violate the 1st and 14th Amendment in various ways by definition. A somewhat more creative Guarantee Clause can probably also be cited, though that is currently deemed non-judiciable in federal courts. So, even if it is but one aspect of the overall "problem" at hand, it is good policy to avoid them as much as possible.]

"The effects of partisan gerrymandering has been covered by various studies with some disagreement."

The basic problem is that most of those studies use some variant of "vote efficiency" to identify gerrymanders.

"Vote efficiency" is very well known to conflate asymmetric clustering of parties' voters with gerrymandering. To the point where serious political scientists don't think it's useful. That's why Chen and Cotrell instead use a technique where software generates many thousands of randomly initiated redistricting schemes, all generated in compliance with normal redistricting standards such as compact boundaries and equal population, but without any reference to voting data. You can then look at the distribution of objectively generated districts, and detect gerrymandering by whether the actual districts are somewhere near the median computer generated district, or several sigma from the median.

This standard, by the way, agrees that Wisconsin is gerrymandered...

Why are there so many studies out there using a measure of gerrymandering that is already known to be hopelessly flawed? Aside from the fact that 'vote efficiency' is trivially easy to calculate, (Because it doesn't take into account any of the information that would allow it to distinguish gerrymandering from asymmetric clustering.) I suspect they're partisan Democrats hoping to convince the Supreme court to mandate actual gerrymandering to counter the Democratic party's clustering problem.

Not likely to work, though, because the problems with "vote efficiency" are so easy to demonstrate, and WILL be demonstrated to the Court in detail.

Cutting and pasting the entire paragraph of your article does not change things:

"The survey found considerable confusion about the law. Most of the people who said they did not vote because they lacked ID actually possessed a qualifying form of ID. This confusion may be the result of a lack of effective efforts educating eligible voters of the requirements of the law, and it is consistent with other studies that show many otherwise eligible voters are confused about ID laws."

This is not confusion, but rather the fact that some stranger called and started a poll by giving a non-voter a ready excuse for declining to cast a ballot apart from their own laziness and then followed up by asking them if they possessed ID, which nearly all of them did.

A photo ID is a ubiquitous requirement of modern life. If these non-voters showed up to the polls, they almost certainly would be carrying one in their wallet or pocketbook. Somehow, everyone in my town manages to master the requirement of bringing a photo ID to the polls.

Why do you think that minorities in particular and Democrats in general are too damned stupid to master the requirement?

This was out of how many tens of thousands of interactions between DMV and citizens? If bureaucrats occasionally giving bad information about the law should invalidate the law, none of use would pay taxes.

"WEAU News: "Gov. Scott Walker's administration is working on finalizing a plan to close as many as 10 offices where people can obtain driver's licenses in order to expand hours elsewhere and come into compliance with new requirements that voters show photo IDs at the polls."

Why? Because the flaws are so easy to demonstrate. Except for all expert studies that somehow allegedly are confused by them and bipartisan support for the challenge in place in the case going to the Supreme Court.

This isn't to say the challenge will be easy. Certain justices are inclined to see it as simply a political question, and Kennedy so far didn't think there were clear standards available for courts to handle the question. He might still think that. Expertise split can help convince him. Still could be good policy.

The Rs are desperate to avoid any evaluation of gerrymandering for partisan reasons. They try to divert attention away from the fact that gerrymandering is, and always has been, inherently a partisan effort to win an election. Several Rs have admitted that they are trying to achieve that. The shape of the boundaries is secondary, so is compactness, so is a river, so is a city. These all might be evidence of attempts to gerrymander, but they are not the thing itself. The only thing that matters is partisan affiliation.

The "efficiency standard" tests district lines at the relevant point: impact on partisan choice. Every effort to offer alternative standards -- "clustering"; "compactness"; whatever -- is a diversion from the central fact that the exclusive purpose of gerrymandering is partisan advantage.

Fortunately the R standards are not "hard-wired", though Rs would surely like the Court to do that for them. Congress should take advantage of the absence of Constitutional control to establish standards which meet the actual wrong taking place. So should the Court, though I don't expect any such honesty from this Court or this Congress.

MF's last sentence is a combination of the possibility in the Constitution and the reality that is influenced by the issues SL are concerned about. The Court part helps certain people not big fans of Trump live with their support of him.

"The "efficiency standard" tests district lines at the relevant point: impact on partisan choice. Every effort to offer alternative standards -- "clustering"; "compactness"; whatever -- is a diversion from the central fact that the exclusive purpose of gerrymandering is partisan advantage."

OK, let me give you a hypothetical example, since you don't seem to grasp how flawed the "efficiency gap" really is.

Suppose you've got a state that has two fairly compact areas of equal population. Say even it's the top half of the state, and the bottom half, and they're not even physically contiguous; It's a situation like Michigan. The top half of the state is 80% Democratic voting, and 20% Republican. The bottom half of the state is 45% Democratic and 55% Republican.

The state averages 63% Democratic. But the way it's been cut up into districts, only 50% of the seats are held by Democrats. Efficiency gap is going to say that this state is gerrymandered. It isn't even a close question, because the efficiency gap is just a mathematically obscure way of asking if the seats are proportional to the votes.

Now, imagine how you'd have to redistrict it in order to eliminate the "gerrymander" that the efficiency gap claims to see. It's flatly impossible to come up with a redistricting scheme that doesn't violate the most basic rules of compactness and respecting physical boundaries. In order to generate districts the efficiency gap would say weren't gerrymandered, you'd have to commit blatant gerrymandering! You'd have to cut the state into long, thin districts from top to bottom, crossing many miles of water to do so. People a 8 hour drive apart would be in the same district, and a different one from people 15 minutes away!

What do you think the Court is going to think of the efficiency gap standard when you explain that to them? "Counsel for the state has just proven that this test for gerrymandering doesn't work, but, what the heck, it's easy to apply!"? I don't think so...

Now, keep in mind that the simulated districting approach applied by Chen and Cotrell agrees that Wisconsin is gerrymandered! And doesn't suffer from any of the problems the efficiency gap is notorious for. It just requires more clock cycles on a computer to calculate. Why didn't the plaintiffs in Wisconsin go with that standard???

They didn't want the Court to adopt a standard that accurately identifies gerrymandering. They want the Court to adopt a standard that helps the Democratic party, even if it actually mandates gerrymandering much of the time.

Now, you can if you want, say, "Screw traditional districting criteria, screw compactness, I just want districts that result in proportional representation."

But the Supreme court has already ruled that the Constitution doesn't require proportional representation. And "gerrymandering" doesn't mean "districts that don't produce proportional representation", it means "Odd shaped districts designed to produce a particular outcome." So there's a reason you get all these studies promoting a test for "gerrymandering" that are really just disguised tests for proportional representation, and that don't pay any attention to the *shape of the districts*.

Because the Court has already rejected what they're demanding, so they're trying to conceal what they're after: Actual gerrymandering, in order to achieve proportional representation.

Those visitors to the thread of this post interested in the theme of Paul Horowitz's initial comment and follow up might be interested in the series of posts at Take Care addressing President Trump and his administration's challenges to the 1st A speech and press clauses, particularly Trump's declaration of war against the mainstream press.

I'd be a lot more impressed with Take Care, if they didn't often complain about Trump in cases where he actually was taking care to enforce a law they just happen to not like. This isn't disinterested concern that the President fulfill his duty to "Take care that the laws be faithfully executed". The people who post at Take Care are just fine with a President systematically not upholding the law, or even acting contrary to it, if they disagree with the law.

Bart, thanks. This "efficiency gap" is a particular peeve of mine. They know it isn't a good measure of gerrymandering, it's notorious for its flaws. But it keeps getting promoted, because most 'voting rights' activists are partisan Democrats, and if they could ever get the judiciary to adopt this as a criteria for gerrymandering, it would be very good for the Democratic party.

I did not notice any of the progressive academics at Take Care insisting POTUS take care to enforce the laws of Congress during the Obama administration's extensive rewrites, waivers and dispensations of that law. Indeed, some of these academics consider the Obama rewrites, waivers and dispensations to be law which Trump is somehow responsible for enforcing.

It's flatly impossible to come up with a redistricting scheme that doesn't violate the most basic rules of compactness and respecting physical boundaries.

These are not "basic rules". They are not "neutral" rules. They are arbitrary rules which benefit certain outcomes. Those outcomes are not democratic (small-d), and they lead to unrepresentative legislative bodies. The goal of districting is not to follow a river or a city line, it's to provide a legislature which mirrors the people at large.

James Wilson: “To the legitimate energy and weight of true representation, two things are essentially necessary. 1. That the representatives should express the same sentiments which the represented, if possessed of equal information, would express. 2. That the sentiments of the representatives … should have the same weight and influence as the sentiments of the constituents would have, if expressed personally."

John Adams: “As good government is an empire of laws, how shall your laws be made? In a large society, inhabiting an extensive country, it is impossible that the whole should assemble to make laws. The first necessary step, then, is to depute power from the many to a few of the most wise and good. But by what rules shall you choose your representatives? …

The principal difficulty lies, and the greatest care should be employed, in constituting this representative assembly. It should be in miniature an exact portrait of the people at large. It should think, feel, reason, and act like them. That it may be the interest of this assembly to do strict justice at all times, it should be an equal representation, or, in other words, equal interests among the people should have equal interests in it. Great care should be taken to effect this, and to prevent unfair, partial, and corrupt elections.”

Any rule that fails to accomplish these goals fundamentally undermines republican (small-r) government. That, of course, is the exact purpose of the current capital-R party.

I'm not fully up to speed regarding the NYT's approach but concerns about having enough people involved in the news gathering section is surely sound. Nonetheless, the paper is appropriately about both news gathering and analysis -- op-ed pages have generally been mainstays -- so in that respect it's important for them to hire the best people there. There has been criticism of certain individuals there. Michelle Goldberg, who has done much research in her analysis pieces, is a good pick.

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There was a good article on the courts that included the Supreme Court's special role in policy, especially with the limits in that respect on the part of the Trump Administration and to some respect the Republican Congress. For years now, the Supreme Court has been quite activist (to me not inherently a bad word) & so the nominees are of particular importance, including those who make/confirm them.

https://thinkprogress.org/scotus-legitimacy-problem-a3fbe0b27c0a/

Mark and Brett really seem to be talking past each other though the usual strawman continue to pop up. In certain places, "the rules" might not be able to fulfill the ends Mark sets forth. I'm going to put that aside to save time. But, in other cases, the districting choices are not compelled by "the rules."

As Mark notes, the Republicans are quite upfront on what they are doing. They have various options when districting when controlling the state legislature and they specifically choose a partisan gerrymandering route. Earlier, it was noted that "both sides do it," so you'd think we can look big here. And, in the current challenge in front of the Supreme Court, there has been some bipartisan support for some check of partisan gerrymandering.

This doesn't require "proportional representation" to avoid. BIG PICTURE, Mark's approach very well might require major changes. Brett likes changes in other cases. But, in various places, that isn't as necessary. Using current basic districting techniques, partisan gerrymandering can be addressed. And, since they violate Mark's norms (a sort of Guarantee Clause concern) while raising First and Fourteenth Amendment rules as well, efforts should be done to address them.

"In fact, to achieve the results you want with single member first past the post districts, in America as the population is actually distributed, would require gerrymandering."

The definition that first comes up is "manipulate the boundaries of (an electoral constituency) so as to favor one party or class." Mark's argument is that we should apportion districts in a way the does not do that. It should be done to as best as possible, not by party, race or whatnot, reflect the population at large. If that is "gerrymandering," the word is being used in a specific way. This would not surprise. Brett repeatedly does that & it can be confusing.

If so, I guess, "gerrymandering" is okay, it depends on the type. Merely neutral drawing of lines surely isn't what is going on, anyhow.

Joe's comment touches on a point I should have made, and leads to another as well.

1. An "efficiency gap" test does not require perfect efficiency. It requires more efficiency. If MI voters were majority Dem but its Congressional delegation were 9R-2D, that's a problem. If the delegation were 6R-5D, eh.

2. The only way to achieve "perfect" efficiency is through proportional representation. I'd favor that, so Brett and I agree to that extent. Whether that is Constitutional is an interesting issue, but that's kind of a moot point since nobody is actually trying to implement PR at this time.

"The definition that first comes up is "manipulate the boundaries of (an electoral constituency) so as to favor one party or class."

Yes, and my point is that, if just going ahead and drawing the district lines by neutral criteria which do not at all take into account partisan advantage, (Which is what Chen/Cotrell did.) is disfavorable to Democrats because of asymmetric clustering, (And it is, in most states.) deliberately manipulating the district lines to negate that effect just precisely meets that definition of gerrymandering. It's deliberately drawing the district lines to achieve a more favorable result for Democrats than would naturally occur redistricting without regard to political effects.

Take a look at that chart on page 335. You can clearly see that Wisconsin IS gerrymandered. The election map is hugely more favorable to the Republican party than the median result of neutral districting. There are, roughly, 9 states that display clear signs of being gerrymandered in the favor of Republicans.

However, there are also 9-10 states that are blatantly gerrymandered in favor of Democrats! I mean, look at Arizona. There's basically no chance at all that Arizona ended up that way without deliberate gerrymandering.

That's why they concluded that gerrymandering is certainly going on, but that the *net* result of it is minimal, thanks to both parties being guilty of it.

1. I don't like vote efficiency as a measure of gerrymandering, because it sucks as a measure of gerrymandering. There are better measures. There are, unfortunately, ulterior motives for not using them.

2. Don't claim you're objecting to gerrymandering, and then adopt a supposed measure of it that actually requires gerrymandering to be satisfied.

Oh, and one more:

3. The biggest obstacle to actually doing something about gerrymandering is the way the Voting Rights act is being interpreted to require the deliberate creation of "majority-minority" districts. You can't effectively combat gerrymandering at the same time you're legally mandating it.

I really don't think the Supreme court will be ready to tackle gerrymandering until they're willing to rule out racial gerrymandering under the Voting Rights act; As it stands, any objective measure of gerrymandering is going to make it obvious that court ordered gerrymanders are a big part of the problem.

It's really hard for the judiciary to tackle a problem they know they're part of.

Brett: "In fact, to achieve the results [Mark] want with single member first past the post districts, in America as the population is actually distributed, would require gerrymandering."

Mark Field's ultimate goal is not "to achieve a more favorable result for Democrats," though (this might be the point) he thinks fair rules would do that long term, going by his overall writings. His goal is to formulate a means to fairly apportion districts that reflect the population.

There are means to do that without "gerrymandering" as that term usually is defined, particularly in certain cases. Or, at least a better job than is done now. This includes if we change the rules in ways Mark suggests is warranted. We need not use a "Democrat" test or something. Again, maybe the problem is that the overall rule will benefit them in various cases?

Republicans are now in control of state legislatures as a whole more than Democrats by a significant margin. They readily admit that they use partisan gerrymandering above and beyond neutral standards. This is problematic on policy and constitutional grounds. Democrats do it too in various cases. Sure. This isn't just about one side. It's a big picture thing. That is why both sides of the aisle have representatives in favor of the courts and policy makers to address partisan gerrymandering.

How we should district as a whole is a wider question, including how to address certain clustering that as Mr. W. noted is a result of popular choice as well as other factors (there is no simple freedom of movement here).

The "other" measures you're supporting are actually evidence of gerrymandering, not solutions for it. They may be "common" principles, but they aren't neutral. They're common because one side sees an advantage to using them; that's the very opposite of "neutral".

"Efficiency" tests do not require gerrymandering, they point towards how to solve it.* The only true definition of "gerrymandering" is that which focuses on partisan gain. "Efficiency tests" are designed to reduce partisan gain in the direction of PR. The "common" methods Brett favors are designed to implement partisan advantage -- they "gerrymander" in the true sense of the word.

*The only real solution for gerrymandering is PR. "Efficiency tests" are a second best solution in a world without that.

We can probably battle gerrymandering, but not if we're going to revise the definition to be equivalent to something the Supreme court has already declared is not unconstitutional. And it's just too obvious that adopting vote efficiency as a test for gerrymandering is designed to do that.

Mark: These are not "basic rules". They are not "neutral" rules. They are arbitrary rules which benefit certain outcomes. Those outcomes are not democratic (small-d), and they lead to unrepresentative legislative bodies. The goal of districting is not to follow a river or a city line, it's to provide a legislature which mirrors the people at large.

The House and its state legislative counterparts represent localities or what are called communities of interest in redistricting parlance. The voters in one district largely share common needs and wants. Legislatures should not draw geographically compact districts because they look neat on a map, but rather place communities of interest in single districts as much as are allowed when dividing the overall population equally.

Making districts electorally competitive between the two major parties generally violates this principle by ripping apart communities of interest and creating geographical gerrymanders. Either the urban or suburban rural voters in one of these "competitive" districts are going to be without representation by the person elected by a bare majority or less.

You've reduced the definition of gerrymandering to "not proportional representation".

Mark references methods "which focuses on partisan gain." This seems comparable to the definition I found -- "manipulate the boundaries of (an electoral constituency) so as to favor one party or class." So, I don't think that is shown.

The specific point discussed in Brett's #1 is to me is not really that important to my immediate concern -- partisan gerrymandering. Both sides do it & when honest, they readily admit to doing so. There are means to reduce it. It's a problematic practice. The concern there is basically a footnote to the wider issue.

This sorta addresses #2 & Mark touches upon that too.

As to #3, factoring in race in districting is an imperfect means, as are generally used in reality, to address a historical and ongoing wrong. Partisan gerrymandering was present before the current voting rights laws and can be reduced factoring them in. Mark's big picture goals will help advance the aims of the laws in question and long term probably would reduce this specific usage. The problems of pain does not mean in certain specific cases pain is warranted. We still can reduce it, including certain aspects.

I'm not the one defining a proper system of representation. The quotes above from Wilson and Adams convey the obvious point that it's supposed to represent the people. Any procedure which fails to achieve this violates the fundamental principle of any representative system.